Vaccine mandates pose human-rights quandary

Non-medical exemption debate pits unvaccinated against health experts and employers, with HR departments stuck in middle

The growing use of vaccine mandates and subsequent requests for non-medical exemptions have thrust Canada into uncharted territory as employers, human-rights officials and lawyers try to navigate a complex new reality with little legal precedent.

Canadian human-rights commissions have experienced a surge in calls and complaints linked to vaccine mandates, prompting new questions about how – or if – human-resource offices should accommodate those who refuse vaccines for non-medical reasons.

“It’s been a contentious issue,” said Louise Taylor Green, CEO of the Human Resources Professionals Association. “Do HR professionals want to be the single or unilateral arbiters of who does and doesn’t get an exemption? No, they don’t.”

B.C.’s Office of the Human Rights Commissioner says that from April, 2020, to October, 2021, the office saw a 775-per-cent increase in inquiries related to COVID-19. The office has received more than 4,000 e-mails about vaccine-status cards since the program came into effect in September.

The Alberta Human Rights Commission is seeing a spike in calls and complaints on any given day, most in response to vaccine mandates, director Nancy Henderson said.

“We are probably receiving up to double the number of complaints we would expect in a day,” Ms. Henderson said in an interview. “We have had as many as 100 calls a day, whereas usually we’re taking 15 to 20.”

Some employers are taking a rigid approach when it comes to non-medical exemptions. Many hospitals, for instance, have decided to fire employees who decline COVID-19 vaccines, saying the risk of unvaccinated employees in a health care setting is too great.

In other cases, accommodation is being made for unvaccinated workers. According to the Treasury Board of Canada, federal employees who request an exemption on religious grounds can be accommodated if they swear an affidavit detailing why they can’t be vaccinated.

Many human-rights commissions have publicly stated that vaccine mandates do not violate human rights. While employers are legally obligated to provide accommodation to employees in certain circumstances, experts say that must be balanced with the need to protect others during a health crisis.

“It is my position that no one’s safety should be put at risk because of others’ personal choices not to receive a vaccine,” Kasari Govender, B.C. Human Rights Commissioner, said in an emailed statement.

Before the pandemic, the debate over non-medical exemptions was largely on the back burner. Vaccine mandates have existed for decades in certain settings, such as schools, in provinces such as Ontario.

Parents have typically had a mechanism to opt their children out for medical justifications, including serious allergic reactions, as well as non-medical reasons, such as by declaring a religious or personal belief objection to mandatory immunization (often referred to as creed-based exemptions).

Such exemptions were relatively uncommon in school settings and it was only in recent years, after some high-profile measles outbreaks, that groups such as Toronto Public Health started calling for the end to nonmedical exemptions.

But the urgent need to bring COVID-19 under control and the growing use of vaccine mandates for workplaces and shared public spaces have ignited a discussion over what accommodation should look like in the context of a global health crisis.

Many health organizations and health experts, including the Canadian Medical Association, have called for an end to non-medical vaccination exemptions. The Ontario Medical Association says the only valid exemptions to a COVID-19 vaccine are medical ones.

Timothy Caulfield, Canada Research Chair in health law and policyattheUniversityofAlberta, highlighted the fact that most religions support vaccination. In most cases, non-medical exemption requests amount to personal-belief objections to vaccination, which shouldn’t count as a justified exemption, Mr. Caulfield said.

“I think the law is pretty clear,” he said. “Having a strong singular belief about the vaccine is not a justification from a human-rights perspective for an exemption.”

One challenge facing many employers is there’s little legal precedent to guide the path forward, Ms. Taylor Green said.

But some individuals, such as those who get fired for not complying with an employer’s vaccination mandate, may bring a legal challenge forward, said Paula Trattner, a partner at the law firm Osler who focuses on health issues. Ms. Trattner has been advising many Ontario hospitals in the creation of vaccination mandates and many are not providing accommodation for individuals requesting non-medical exemptions, she said.

Canadian law protects an individual’s freedom of religion or belief, but those are subject to reasonable limits. Ms. Trattner and other legal experts say that in the context of a public-health crisis, such limits could include denying an employee’s request to refuse vaccination, as that decision could put others at risk.

Mr. Caulfield said non-medical exemptions may always be around, but it would help to define exactly when and how they should be applied in future.

“Having a non-medical exemption, an extremely narrow one and one that is articulated very clearly, makes sense,” he said. “I do think it’s incredibly important to highlight exactly how narrow those non-medical exemptions are.”